State v. Rasawehr, 2020 Ohio 429

Background

In Oct. 2016 Celina Municipal Court charged Jeffery E. Rasawehr with multiple misdemeanors (menacing by stalking and telecommunications harassment among others); he pled not guilty.
The State joined this case with a separate case (16CRB00942); Rasawehr did not object or seek severance and did not appeal from the joined case.
At trial (May 21–24, 2019) the court dismissed many counts; the jury convicted Rasawehr on Count Five (menacing by stalking) and Count Six (telecommunications harassment) and acquitted on two other counts; he received five years community-control sanctions.
On appeal Rasawehr raised: (1) the court’s jury instruction re: an affirmative free-speech defense and the State’s closing argument; (2–3) sufficiency of evidence for the two convictions (mental distress and threatening/obscene statements); and (4–5) as-applied First Amendment and due-process (vagueness) challenges.
The trial court had instructed the jury which instructions applied to each joined case; the disputed affirmative‑defense instruction pertained to the other case (which Rasawehr did not appeal).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s jury instruction and the State’s closing argument created structural error by treating free speech as an affirmative defense	State: no structural error; instruction/argument either applied to the other joined case or was permissible response to defense evidence; any error is not structural	Rasawehr: instruction and State’s closing placed burden on him to prove a free-speech defense, denying fair trial and right to remain silent	Held: No structural error; instruction at issue applied to the other case (not appealed); State’s remarks reviewed for plain error and were not improper or prejudicial; assignment overruled
Sufficiency of evidence for menacing by stalking (mental‑distress element)	State: evidence (texts, voicemails, pattern of conduct, victim’s testimony) was sufficient to show defendant knowingly caused victim to believe he would cause mental distress	Rasawehr: State failed to prove victim suffered mental distress or that his speech could criminalize commentary about a past killing	Held: Evidence sufficient; statute requires that victim believe offender would cause mental distress (or actual distress under some holdings); texts/voicemails and history supported conviction
Sufficiency of evidence for telecommunications harassment (threatening/intimidating/menacing/coercive/obscene element)	State: voicemail and texts contained threats, menacing statements, profanity and demeaning language meeting common‑meaning elements	Rasawehr: contended insufficient proof that statements were threatening/intimidating/obscene (offense element)	Held: Evidence sufficient; voicemail expressed intent to harm (threat) and used obscene/demeaning language—juror could find element satisfied
As‑applied First Amendment and vagueness challenges to R.C. 2903.211 and 2917.21	State: statutes constitutional and applied properly; defendant waived challenges by not raising them at trial	Rasawehr: statutes unconstitutionally vague/overbroad as applied to his speech; First Amendment protects his statements	Held: Defendant waived these constitutional claims by failing to raise them at trial; court declined to reach merits and overruled assignments

Key Cases Cited

Johnson v. United States, 520 U.S. 461 (1997) (limits on when error is structural)
Arizona v. Fulminante, 449 U.S. 279 (1991) (structural‑error framework)
Rose v. Clark, 478 U.S. 570 (1986) (structural‑error discussion)
State v. Martin, 103 Ohio St.3d 385 (2004) (Ohio discussion of structural error)
State v. Perry, 101 Ohio St.3d 118 (2004) (structural‑error authority)
State v. Jenks, 61 Ohio St.3d 259 (1989) (standard for sufficiency review)
State v. Cress, 112 Ohio St.3d 72 (2006) (defining “threat”/“intimidation”)
State v. Wamsley, 117 Ohio St.3d 388 (2008) (plain‑error review for prosecutorial remarks)
State v. Ballew, 76 Ohio St.3d 244 (1996) (prosecutor latitude in closing)
State v. Barnes, 94 Ohio St.3d 21 (2002) (plain‑error principles)
Pang v. Minch, 53 Ohio St.3d 186 (1990) (presumption jurors follow instructions)